Texting Your Will...Will it be Upheld?

We do a lot of things on our smartphones: we shop, text, bank, post pictures, order food, find directions, get news and stay connected with friends and family. And now, in some states, you can add "create a will" to the list.

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If you find yourself in a life-and-death situation and grab your phone and quickly type a text message that begins, “This is my last will and testament….” followed by who you want to receive your most- prized possessions and end the message with your full name and press “send” is this a valid will? Will your wishes be carried out?

The answer is: probably.

Last fall, an Australian named Karter Yu committed suicide immediately after texting his wishes and good-byes to a few individuals with whom he was close. The Queensland court upheld his will as valid.

Wills have been around for more than 2,000 years and are older than the scribes, regulations, county clerks, lawyers, typewriters, laptops and all of the rigmarole that has been attached to the process over the centuries--presumably with good intentions. After all, you don’t want the dead to come back and haunt you if you don’t divide their earthly possessions in accordance with their wishes! (Plus, there’s the matter of collecting inheritance and estate taxes depending upon who receives a bequest.)

Decades before electronic documents were imagined, many states revised their inheritance laws to accept wills that were videotaped. So it’s a natural evolution that they would accept wills transmitted via cyberspace. Except that's not always the case. Some states, New York for instance, still insist on doing things the old-fashioned way.

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Attorney Bruce Steiner with the New York City firm Kleinberg, Kaplan, Wolff and Cohen know this first-hand. However, he says if you live in one of the 18 states that have adopted the Uniform Probate Code (UPC), they are much more flexible about accepting unconventional wills, provided they meet basic requirements.

The first hurdle is proving that the individual intended it to be his/her will.

In the case of Yu, Steiner says he took several critical steps:

1- After writing his will, he typed his name at the bottom.

2- He wrote farewells.

3- All of his messages had a time and date stamp proving they were completed just before he committed suicide.

According to Steiner, it’s not enough to simply state “this is my will.” Someone could argue that it is just a draft you were working on. However, in Yu’s case, “since all of the texts were written and sent at approximately the same time, this lent credibility to the fact that he intended this to be his final will and testament,” Steiner says. Moreover, if it was just a draft that he intended to refine later, he would not have signed it. Nor would he have killed himself immediately after sending it.

Despite the fact there were no witnesses attesting to his intentions, Yu’s iPHone message was accepted as his will. “Plus, presumably no one contested it. That helped a lot,” according to Steiner.

When it comes to a will's validity, it literally comes down to location, location, location.

Traditionally, a will is signed in a “public” ceremony, meaning two unrelated individuals witness the signing and then attest to this in writing. Witnesses are critical if a will is contested. They will be called upon to testify that the decedent did, in fact, state that this was his/her will and signed the document of his/her own free will.

Electronic wills- which have no witnesses- have a better chance of being accepted if you are in a jurisdiction that has relaxed formalities.

These days, since many of us are comfortable with creating electronic documents, it’s tempting to simply write your own will. “It’s not an approach I’d recommend,” cautions Steiner. “If you are attempting to create a will in an unconventional fashion, you might not think of things a lawyer would.” Still, he understands that if you don’t own many possessions or real estate and you live in a state that has adopted the UPC, you might be fine creating your own document.

Even if you are not expecting to die soon, you can still create a will, says Steiner. He suggests you put it in a folder marked “Please Open Upon My Death.” Include other documents such as a farewell note,wishes for your funeral, passwords to your online accounts (so that these can be closed) and other pertinent information.

If your will is online, electronically sign the document. While you won’t have witnesses, you can make your wishes “public” by attaching the file and sending it to others. “The best person would be your executor,” advises Steiner. You might also include your spouse, children or other appropriate individuals.

However, according to Steiner, this is “not necessarily the best way to do it. You’re better off printing the document, signing it in ink and having two witnesses sign.” Moreover, if the assets involved are significant, “there are tax-planning and asset protections issues” you might need an attorney to handle.

Nonetheless, it’s comforting to know that in an emergency, texting or emailing your will just might be enough.